CADWELL & CADWELL

[2020] FCCA 1415

FEDERAL CIRCUIT COURT OF AUSTRALIA

CADWELL & CADWELL [2020] FCCA 1415

Catchwords:
FAMILY LAW – Interim proceedings relating to parenting arrangements for two children aged 8 & 5 – final orders made by consent following family report in April 2019 – high levels of conflict between parents concerned – mother alleges father has physically and psychologically abused children – notification investigated by police and child welfare authorities – father denies allegation – assessment of risk – best interests – nature of interim hearing.  

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

CDJ v VAJ (1998) FLC 92-828

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) FLC 92-286

In the Marriage of McEnearney (1980) FLC 90-866

Mazorski v Albright (2007) 37 FamLR 518

Slater & Light [2013] FamCAFC 4

SPS & PLS [2008] FamCAFC 16

Applicant: MR CADWELL

Respondent: MS CADWELL

File Number: ADC 1989 of 2018

Judgment of: Judge Brown

Hearing date: 14 May 2020

Date of Last Submission: 14 May 2020

Delivered at: Adelaide

Delivered on: 3 June 2020

REPRESENTATION

Counsel for the Applicant: Ms Miller

Solicitors for the Applicant: Belperio Clark

Counsel for the Respondent: Mr Anderson

Solicitors for the Respondent: Clelands Lawyers Adelaide Pty Ltd

ORDERS

1. Until further order, the orders dated 1 April 2019 do continue, with the father’s time pursuant to order 3 of those orders to recommence on 5 June 2020.

2. The father be restrained and an injunction is hereby granted restraining him from attending handover, at the Suburb A Police Station, in the company of Ms B.

3. All interim applications be dismissed.

4. Further consideration of the matter is adjourned to 14 October 2020 at 9.30am for directions.

IT IS NOTED that publication of this judgment under the pseudonym Cadwell & Cadwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1989 of 2018

MR CADWELL

Applicant

And

MS CADWELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Cadwell “the father” and Ms Cadwell “the mother” are the parents of eight year old X and five year old Y.  They have been in dispute with one another in respect of arrangements for the care of the children since they separated in May of 2017.

2. The parties began to live together in early 2009; married in 2012; and are now divorced.  Despite the making of extensive final consent orders in early April of 2019, they remain in dispute and their parenting relationship can only be described as highly conflicted. 

3. During their relationship, the parties lived in Town C on the Region D.  Mr Cadwell still lives there.  It is his case that the mother surreptitiously planned, prior to separation, to relocate to Town E, in the Region F, with the children.  It is a 168 kilometre drive between Town C and Town E. 

4. It would appear to be the case that the distance between the parties’ two locations and the controversy surrounding how this situation came about still wrangle with each of the parties.  This has fuelled the acrimonious dispute between them, in which each makes stringent criticism of the other, as both a person and a parent. 

5. The parties have each moved on significantly in their personal lives, in the period since separation, which has added complexity to the blended families surrounding X and Y.  The advent of each new partner seems to have exacerbated rather than diminished the conflict between the father and mother. 

6. The father’s current partner is Ms B.  Ms B and the father have a son G, aged around about one.  Ms B has a daughter from a previous relationship, who is aged five.  The mother has also re-partnered.  Her partner is Mr H.  The mother has two young children with Mr H, as well as two older children, from a previous relationship to that with Mr Cadwell. 

7. The father first instituted proceedings on 2 September 2018.  He was highly critical of the mother asserting that she was a neglectful parent, who did not feed X and Y appropriately; utilised inappropriate physical discipline for the children; and did not support their paternal relationship with him.

8. As such, he asserted that the children were at risk in their mother’s care.  The mother had her own serious criticisms of the father.  She asserted that he had been a gentle person until shortly prior to separation, when he changed.  She suspected drug abuse.  Thereafter she alleged he had become a violent person.

9. She further alleged that Y had received a burn to her back in March of 2018 and both children had been exposed to the father’s violent temper, as had she.  As a consequence, she asserted that the children were frightened of their father and necessarily at significant risk of coming to harm, whilst in his care, in both a physical and psychological sense. 

10. Accordingly, the first phase of the proceedings were centred on the children maintaining a safe relationship with each of their parents over significant distance, against a background of mutual mistrust and disharmony featuring serious allegations of abuse on each party’s part. 

11. Against this difficult background, the parties also had to settle their property issues, which were not significant in monetary terms, but remained emotionally challenging nonetheless, particularly because the father wished to retain the former family home and the lifestyle it represented at Town C. 

12. To the parties’ credit, in difficult circumstances, the case initially moved through a series of consent orders, which saw the children living with their mother and spending time, on an alternate weekend basis with their father.  X had some counselling. 

13. A family report was ordered to assist the parties and the court to move forward.  It was the father’s position that he should spend as much time as possible, with the children, notwithstanding the distance involved.  He sought three weekends out of each four, during school terms.  From the mother’s position, this was impracticable and not in the children’s best interests due to their reticence about their father. 

14. The family report was prepared by Ms J, a psychologist and released to the parties in February 2019.  Once again, to Ms J, the parties reiterated their criticisms of one another to her. 

15. The father complained:

    ·The mother was alienating the children from him;

    ·The mother continued to neglect the children, who were underweight;

    ·He denied drug use and relied on a negative drug screen test in this regard.

16. The mother complained:

    ·The father and Ms B bombarded her with complaints/allegations about her parenting;

    ·The father and Ms B were aggressive and overbearing at handovers;

    ·The father continued to be erratic in mood and she did not believe that he was drug free.

17. Ms J interviewed X for the report.  She was aged seven and a half at the time.  She said of her father sometimes he’s good and sometimes he’s bad.  When asked where she wanted to live she said with mum but she was also keen to spend time with her father, indicating that she liked it how it was now, which was once per fortnight. 

18. Y was just over four years, when interviewed.  She presented as a shy and quiet child, who struggled to separate from her mother.  In these circumstances, it is not surprising that she was unforthcoming about any preference regarding her living arrangements. 

19. Ms J also conducted an observation of the children with each of their familial constellations.  The children were affectionate and comfortable with their mother, Mr H and their older siblings.  Initially the children were unwilling to separate from their mother to spend time with their father and Ms B. 

20. However, after a while, they warmed to their father and were noted to provide him with spontaneous affection.  Mr Cadwell was described as being nurturing towards X and Y, who were described as being comfortable with their father and Ms B. 

21. In her evaluation, Ms J noted that although the parties wished to parent in a child-focussed manner, their ongoing and endemic conflict stood in the way of this.  As a consequence, Ms J was concerned at the potential psychological harm which was likely to be inflicted on the children, if they were repeatedly exposed to their parent’s disagreements.

22. In this context, Ms J noted that X had expressed distress about the handover process, which she (Ms J) considered could be handled better.  In addition, for obvious reasons, Ms J was struck by the logistical difficulties arising as a consequence of the distance between the parties’ respective homes.  Ideally, she would want the parties to move closer together, for the sake of the children. 

23. In all these circumstances, Ms J was of the view that the regime proposed by Mr Cadwell was impracticable.  Accordingly, she recommended the parties have equal shared parental responsibility for X and Y but that the children continue to live with their mother but have regular fortnightly visits with their father, which could increase in duration in school holidays. 

24. On 5 February 2019, the parties were able to agree on final arrangements for the separation of their property and a few weeks later, in light of the family report, on 1 April 2019, they agreed on final orders for the parenting of their children.  I suspect each of them were dissatisfied with the outcome.  Certainly it appears to have done little to reduce the conflict between them noted by Ms J.

25. The orders agreed upon were essentially in line with Ms J’s recommendations.  The parties were conferred with equal shared parental responsibility for X and Y, who were to live with their mother.  The alternate weekend arrangement, through which they engaged with their father, was from 5:30pm Friday until 5:30pm the following Sunday.

26. Significantly, as the matter has unfolded, it was agreed that the children would spend seven consecutive nights with their father during each of the short term holidays and week about, during the end of year holiday.  The orders provided that the nights were to be agreed between the parties ordinarily. 

27. Handover was to occur inside the Suburb A Police Station.  Injunctions were made restraining the parties from abusing or denigrating the other; physically disciplining the children; or moving their place of residence. Clearly, these orders were indicative of a significant and ongoing level of tension between the parties. 

28. In my view, it is not an optimal arrangement that children be exchanged within a police station.  Children associate such places with bad people, not happy situations.  Accordingly, police stations should be used for handover only when factors relating to parental conflict dictate that no other more child-friendly location is viable. 

29. It is apparent, from the father’s perspective that the arrangements, envisaged in the 1 April 2019 order, proved problematic from the get go.  He asserts that there were disagreements about how his time with the children, during the short school holidays, should be configured.  The implication of his evidence being that the mother was being unreasonable and bloody minded. 

30. Things came to a head in mid-December 2019, when he was travelling to collect the children from the police station.  He received a call from the Town K police who alleged that he had assaulted or abused Y in some way.  Nonetheless, he continued to the police station but the children were not delivered, a pattern which continued over the coming weeks. 

31. From Mr Cadwell’s perspective, it was deeply unsatisfactory that he was not able to spend time with the children over the Christmas period and afterwards.  He is also highly critical of Ms Cadwell for not telling him in any formal way why she was behaving in the manner in which she was in respect of the non-delivery of the children.

32. For obvious reasons, this state of affairs points to the highly conflicted relationship between the parties and is indicative that they are simply incapable of discussing any important (or even trivial) issues to do with the children.  In these circumstances, it was inevitable that the case would return to court. 

33. Mr Cadwell instituted the current proceedings on 26 February 2020.  He sought an urgent recovery order in respect of the children and an urgent reinstatement of the arrangements contained in the 1 April 2019 order. 

34. A recovery order is a direction issued to a police officer directing the police, in effect, to remove a child from a parent and deliver the child to the other parent.  It is an extreme intervention, which can only be justified in exceptional circumstances.  It is potentially traumatic for a child to be treated in such a way, notwithstanding the sensitivity applied by police officers.

35. A few days after this application, the father filed a contravention application.  Thereafter, there have been a plethora of documents filed in the case, which to my mind is indicative of the frustration felt by the father.  The proceedings themselves have been forcefully conducted, which again is indicative of the powerful emotional forces involved in the case.

36. From Mr Cadwell’s perspective it was extremely frustrating that he was not able to spend time with the children for many weeks on the basis of what he considered were imprecise and untrue allegations raised by Ms Cadwell.  He was interviewed by police on 24 January 2020 and denied the allegations against him, which he understood related to an allegation that Y had been hit by him on her back.

37. Initially, the mother did not respond to his court documents, which seems to have escalated the acrimony of the dispute concerned.  The father’s various applications were given a first return date of 24 March 2020, which I appreciate, from Mr Cadwell’s point of view, was too late, given the urgency of the case from his perspective. 

38. However, notwithstanding his concerns, little could be done on this date as Ms Cadwell, although legally represented, had not formally responded but did raise issues to do with child safety and what she asserted was a police investigation which remained current. 

39. On 24 March 2020, she was given fourteen days to file her answering documents and given her assertions that the children had been physically abused by their father, no orders were made for him to spend direct time with the children but an order was made for electronic communication on two occasions each week via Facetime. 

40. Significantly, on this date, an order was made pursuant to the provisions of section 69ZW that the Department of Child Protection and SAPOL provide details and any reports prepared in respect of any notifications of child abuse received by each of them in respect of Y and X.  At this stage, it was apparent that there had been some form of child protection investigation. 

41. Section 67Z of the Family Law Act mandates any person concerned in proceedings before the court to file a formal document known as a Notice of Risk setting out all relevant details relating to the previous abuse or future risk of such abuse in respect of the children concerned in the relevant proceedings.

42. On 7 April 2020, Ms Cadwell filed such a notice along with her response and affidavit in support in respect of the father’s application.  The case had previously been adjourned to 14 April 2020.

43. One of the functions of the Notice of Risk is to act as a red flag to relevant child protection authorities and require such authorities to provide details and information held in respect of the child concerned and, if the degree of risk is assessed as being sufficiently serious, to investigate the matters raised in the relevant notice.

44. On 9 April 2020, the Department for Child Protection responded to the mother’s Notice of Risk, which it assessed as notifier concern.  The Department also indicated that it did not have a current open case in respect of either X or Y. 

45. The mother’s Notice of Risk alleged that the children had been subject to physical and psychological abuse, whilst in the care of their father.  Examples of this abuse pre-dated the final order of 1 April 2019 and included criticisms of Ms B.  In the context of the current matter, the mother alleged that on 24 November 2019, Y had returned home from her father with significant bruising to both knees and across her back.

46. The mother expanded upon her Notice of Risk in her affidavit filed on 7 April 2020.  She asserted that it was not she who had made the notifications of abuse to SAPOL or CPS, it being the implication of her evidence that some other person, unrelated to her, had been sufficiently concerned about the safety of the children to raise issues with the court.

47. Ms Cadwell’s affidavit coincided with the onset of the Covid19 pandemic crisis.  In addition, in early 2020, Ms Cadwell gave birth to her sixth child by emergency caesarean section.  She had previously been significantly unwell due to complications.

48. In this context, Mr Cadwell himself deposed that he had been contacted by Mr H, who advised him that the mother wanted to see him, in hospital, on 9 March.  She said that she wanted to tell him that “if anything happened to her, she wanted to know that the children would be okay.”  The implication of this evidence, from the father’s point of view, is that when placed in extremis, the mother had no great concerns about his parenting and accepted that X and Y should be in his care. 

49. Ms Cadwell further deposed that she and the children were self-isolating, which was of a particular concern given her health and that of her newborn child.  Ms Cadwell continued to be critical of Ms B, whom she characterised as being very abusive and intimidating. 

50. Notwithstanding the information received from DCP, it was Ms Cadwell’s evidence that Ms L, a psychologist employed by CPS, was preparing a written report in respect of Y and X.  In this context, she deposed that X had recently been teary, extremely angry and withdrawn.  She had indicated that she did not want to see her father and had previously watched him (Mr Cadwell) hurt Y. 

51. On 20 April 2020, the mother’s solicitor filed an affidavit to which was attached Ms Cadwell’s statement to police detailing a history of the children returning, from their father, with suspicious bruises.  In this statement, Ms Cadwell indicated that she had not wanted to take photographs of these injuries because she wished the children to get back to normality. 

52. However, on 24 November 2019, Y had complained that her dad had pushed her hard on her knees.  Later, she complained that her father had hit her with a broom.  In this context, Ms Cadwell had taken photographs of the alleged injuries, which were also attached to her affidavit.  However, given the photocopying process, these photographs are unintelligible to me. 

53. Accordingly, on 14 April 2020, it became apparent that there was potentially a significant report, concerning the children, prepared by Ms L.  This report was not to hand and necessitated a further adjournment, which I accept led to the father’s further frustration.  His counsel, Mr Anderson vociferously submitted that the court should reinstate the operation of the earlier order.

54. Ms L’s report is dated 3 April 2020.  It was included in the section 69ZW documents.  She is a clinical psychologist, with expertise in interviewing vulnerable witnesses, particularly children in the context of abuse investigations.  Her report is a densely written one of some 29 pages. 

55. Y was interviewed in January 2020, in the presence of a police officer, by Ms L.  At the time, Y was not yet five and a half years of age.  There is no direct transcript of the forensic interview.  Rather, Ms L summarised its contents in her report. 

56. This summary indicates that Y made contradictory statements.  On the one hand, she indicated that she did not want to go to her father’s house because he hurt her but Y was unable to provide further contextual information regarding these statements.  In addition, she gave an alternative explanation for her bruising, which was that she had accidentally walked into a bicycle.

1. At one stage of the interview, Y indicated that she considered that her dad was safe.  Y also said when asked if her father had done bad things to X, she responded no way.  Y also said that she had lots of fun at her father’s home. 

2. Ms L informed Ms Cadwell of the contents of this interview at a feedback session.  In this session, Ms Cadwell indicated that she had been apprehensive Y might provide information that would either show her or Mr Cadwell in a bad light as Y was able to make a lot of stuff up. 

3. I appreciate that Ms L has not given any oral evidence in these proceedings and so her methodology has not been subject to any scrutiny.  However, in my view, her forensic assessment of Y is close to meaningless.  This is not meant as a criticism.  Y is a young child who is cognitively and linguistically immature.  The events in respect of which she was being interviewed had occurred several months earlier, which for a child of her age is a significant period of time.

4. Ms L went through the same process with X, who was eight years and seven months old at the time of interview.  Clearly, she was a more mature and articulate child than Y.  When asked about her bruising, X indicated that she got heaps of bruises, which she attributed to school or when she hurt herself at home.  She did not attribute any sinister origin to any of her bruises. 

5. Of major concern, as matters have subsequently transpired, Ms L asked X if Mr Cadwell had ever hurt Y.  In this context, X disclosed that Mr Cadwell had thrown Y against a wall approximately two years before, which had resulted in the child sustaining a very red back.  Further detail was provided as to where this incident had happened and events before and after it.  X reported that Y had been screaming and her father had got really angry. 

6. As a consequence of this disclosure, Ms L was of the opinion that X was describing an actual event, which she had retrieved from her memory.  She reached this conclusion on the basis of the context provided by X, particularly its emotional content.  Ms L further was of the view that the child had not been primed to make the disclosure but noted it was a significant time ago, most likely prior to March of 2018.

7. Again I note that Ms L’s opinion has not been subject to direct scrutiny.  Although older than her sister, X remains a cognitively immature child, who is reporting an incident occurring around two years ago.

8. The incident itself is not corroborated by any material evidence of injury.  The question arising being whether the report itself is sufficient to deprive the children of the benefits of a relationship, with their father, which Ms J previously assessed as being meaningful within the context of the mother agreeing to a regime of time.

9. In the summary and conclusion section of her report, Ms L reported as follows:

   “… it is the clinician's opinion that when X provided an account of Mr Cadwell throwing Y against a wall, she was describing an event that she had actually witnessed. X's account suggests that Y was physically assaulted by Mr Cadwell.

   Further concerns arose that X's statements regarding the time she spent with her father appeared to reflect a sense of anxiety, insecurity and unpredictability. She perceived that she was told off and yelled at by her father, that there were times when her father had an angry face and yelled at everyone in the home, that she was scared that when her father was driving her to her Nan's he may take her somewhere different, and he might leave her in the car during a meeting. When asked about what made her happy during visits with her father, it was noteworthy that X said it was when she was able to leave her father's home and spend time with her Nan. It seems likely that witnessing the alleged assault of Y would have contributed to feelings of anxiety and unpredictability for X while she is in Mr Cadwell's care.

   …

   …the relationship between Mr and Ms Cadwell was clearly acrimonious.  Although the children's exposure to, and impact of, the acrimonious relationship between their parents was not specifically explored during their forensic interviews, both parents provided information to the CPS clinician regarding multiple occasions in which the children had been subject to very concerning behaviours by their parents. For example Mr Cadwell alleged that Ms Cadwell had threatened to "slit his throat" in front of the children. Meanwhile, Ms Cadwell provided details about a handover in March 2018 in which Mr Cadwell would not allow the children to be returned to her care, the children were grabbed and pushed, and police intervention and a recovery order was required. Further, Ms Cadwell reported that Mr Cadwell had previously caused the school to "lockdown" and concerns were raised in a DCP notification that Ms B had allegedly attempted to run over Ms Cadwell.

   In addition, X provided information in her forensic interview indicating that she had been exposed to Mr Cadwell and Ms B speaking about Ms Cadwell in a derogatory manner and she did not feel that she could tell them to 'stop' otherwise she would be told off. Neither parent appeared to be able to reflect on their possible role in maintaining the acrimonious parental relationship.”[1]

   [1]  See Forensic Psychosocial Assessment report of Ms L dated 3 April 2020 at pages 27-28

10. Although there has been no concluded final hearing in these proceedings, the parties, as recently as mid-2019, were able to reach a consensus about arrangements for the care of their two children.  However, this consensus seems, at best to have been transitory and, at worst, expedient.  Accordingly, it seems to me more likely than not that Ms L’s assessment of the parties’ relationship as being toxic and acrimonious is a correct one.  It also seems highly likely that the two children have been exposed to the worst aspects of this relationship, which have involved Ms B from time to time.  In my view, this is the most significant aspect of the case, at this stage.

11. It also seems to me to be more likely than not that each of the parties have contributed to this conflict, albeit in different ways.  In this context, it is difficult to attribute fault between them for this parlous state of affairs.  In addition, as a consequence of Ms J’s report, I also consider that the children are likely to derive significant benefits from interacting with each of their parents. 

12. One of the aspects of Ms L’s report related to concerns, apparently raised by Ms Cadwell, that the children had been subjected to some form of sexual abuse.  Ms L was able to discount these concerns and, so far as the allegations of physical abuse were concerned, it is axiomatically the case that both CPS and SAPOL did not consider that they justified any further action. 

13. Under the heading recommendations, Ms L wrote as follows:

    “If the Family Court orders that contact between Mr Cadwell and Y and X resumes, is recommended that the paternal grandmother be present for several visits. Information obtained in this assessment suggested that X perceived her grandmother as a positive figure in her life and therefore her presence during the children's contact visits could assist them to feel supported and safe in their father's care.

    Given X's reported emotional and psychological difficulties, she requires a regular therapeutic service to improve her ongoing emotional, psychological and behavioural wellbeing. Y would also benefit from an assessment for therapy. It is important that both parents consent to this and are involved in the therapy process to assist them to be attuned to the children's needs and respond to them sensitively.

    Given the level of acrimony between Ms and Mr Cadwell, it is recommended that both parents receive psychoeducation about the potential impact the acrimony and conflict in the parental relationship have on their children. An appropriate program would be KidsAreFirst, a post separation support program for parents and children facilitated by Anglicare.

    Mr Cadwell engage in a parenting support program, such as the Circle of Security, to assist him in his understanding of his children's emotional, behavioural and psychological needs, and areas for strengthening his relationships with X and Y. The Region D Families service may be able to assist Mr Cadwell regarding this recommendation.”[2]

    [2]  Ibid at pages 27-28

The parties’ current positions

1. The matter finally came on for its scheduled interim hearing on 14 May 2020.  It remains Mr Cadwell’s position that there is no substance to any of the complaints made against him regarding issues of abuse and he believes that the mother has at best exaggerated minor issues or, at worst, fabricated her complaints and enmeshed the children in them. 

2. In this context, he has deposed that Y has some difficulties with her back and leg, which have necessitated chiropractic involvement.  In the past, she has complained of pain to her back and this has been treated with ice packs. Part of his case is that it is possible the child has been conflating this incident with her current complaints against him.  In any event, like Ms Cadwell, he asserts that Y has a propensity to make things up.

3. In all these circumstances, it remains Mr Cadwell’s position that the court should reinstate the orders of 1 April 2019 and he should resume spending time with the children as soon as practicable, with handover to occur at the Suburb A Police Station.

4. On the other hand, Ms Cadwell submits that the court should adopt Ms L’s recommendation that a cautious approach be taken in respect of the children’s reintroduction to their father.  As a consequence, she submits that the earlier orders should be suspended and in lieu thereof:

   ·The father spend time with the children on alternate Saturdays from 10:00am until 4:00pm; subject to the supervision of the paternal grandmother;

   ·Handovers continue to occur at the Suburb A Police Station but in the absence of Ms B;

   ·Each party undertake the parenting courses recommended by Ms L;

   ·An independent children’s lawyer be appointed;

   ·An updated family report be prepared. 

5. The interim hearing, in the case, took place on 14 May 2020.  I was not able to deliver judgment at its conclusion.  However, in order to ensure that Mr Cadwell’s time with the children be reinstated as soon as possible, I ordered that he spend time with X and Y on the two following Saturdays between 8.00 am and 7.00 pm, subject to the supervision of the paternal grandmother.  The aim was for the father and children to have an outing together.  Handover was at the Suburb A police station.

Legal considerations

1. This is a case concerned with risk and its assessment in the context of an interim hearing, which does have to take place in a truncated form, without cross examination.  As a consequence the court is not in a position to make concluded findings of fact on the basis of affidavit evidence alone.

2. However, in many ways, the court is better placed than in many other interim hearings, because it has available to it a fairly recent family report and the assessment of Ms L.  More often than not, interim hearings take place in an atmosphere of crisis.  The same level of crisis exists in this case but there is a significantly greater level of independent expert evidence than is usually available.

3. This reveals that the children are at risk of emotional harm from their parents’ poor relationship.  It is also significant that the incident of abuse relating to Y, which Ms L regards as having an element of veracity about it, pre-dates the making of the April 2019 order and that otherwise, she was not in a position to substantiate the other allegations raised by the mother.

4. The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed.  In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[3]

   [3]  See Goode & Goode (2006) FLC 92-286 at 80,901 [68]

5. Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned. 

6. In this case, in my view, it must be regarded as significant that the parties, fairly recently, in the context of an expert family assessment, agreed on care arrangements for the two children concerned.  This is indicative that, to some degree, it was accepted by them, that the children had a significant relationship with each of their parents.  Certainly, this was Ms J’s opinion.

7. At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.  They are contained in Part VII of the Family Law Act 1975 (“the Act”).

8. In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].

9. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

10. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.

11. There are two primary considerations, which are as follows:

    “a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.”

12. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

13. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

14. As with many cases, the present matter requires the balancing of these two primary considerations.  The father emphasises the benefits the children are likely to accrue from resuming their currently interrupted relationship with him; the mother focusing on protective concerns.

15. The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[4] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.

    [4]  See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]

16. The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives.  As a verb, involve means to participate or share experience. 

17. Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.

18. Abuse, in respect of a child, is defined by section 4(1) of the Act. It means:

    “(a)  an assault, including a sexual assault, of the child; or

    (b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d)    serious neglect of the child.”

19. It is the mother’s case that there is a significant level of risk, if the children begin to spend time with their father again, they will be exposed to some form of abuse.  In this context, she alleges the children have each been assaulted by their father as well as having been exposed to his (and Ms B’s) aggressive behaviour at handovers, which is also psychologically abusive of them.

20. The father denies these allegations.  Ultimately, given the ages of the children concerned and their linguistic and cognitive immaturity, it may be impossible for the court to ascertain, on the balance of probabilities, whether the father did or did not abuse the children in the manner claimed by Ms Cadwell.

21. This difficulty does not absolve the court, either at the interim or final stage, of the responsibility to assess the evidence available and determine the degree of risk arising for any child concerned. 

22. In this context, there are also risks inherent in preventing children from having a proper level of relationship, with a significant relative, on the basis of uncertain evidence or as a consequence of giving excessive weight to unfounded or speculative allegations.

23. In Deiter & Deiter,[5] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

    [5]  See Deiter & Deiter [2011] FamCAFC 82

24. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

25. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

    “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”[6]

    [6]  Slater & Light [2013] FamCAFC 4 at [37]

26. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore. 

27. In this particular case, sub-paragraphs (b);(e);(i);(j); and (l) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:

    ·The nature of the child’s relationship with parents and significant other persons, including grandparents;

    ·The practical difficulties  relating to spending time with a parent;

    ·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;

    ·Any family violence involving the child or a member of the child’s family;

    ·Whether it would be preferable to make the order which would be least likely to lead to the institution of further proceedings between the parties concerned.

1. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

2. In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them place an emphasis on the co-involvement of parents, in the lives and development of their children.

3. As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

4. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply it only if it considers that it has not been negated by other considerations specified in the section.

5. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

6. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

7. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].

8. The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode, can be summarised as follows:

   ·consider the section 60CC matters that are relevant;

   ·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:

   Ø there are reasonable grounds to believe abuse or family violence has occurred;

   Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;

   ·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;

   ·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;

   ·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children’s best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);

   ·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.

   ·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Consideration

1. The legislation is clear that protective concerns, in respect of a child, must be elevated over those considerations relating to a child having a meaningful level of relationship with a parent.  In my view, this does not mean that I am not required to give significant consideration to the benefits, which are likely to accrue to X and Y as a consequence of them having a meaningful level of relationship with their father.

2. The mother’s allegations of abuse have been subject to an intensive forensic investigation.  No charges will be laid against Mr Cadwell and the Department of Child Protection does not intend to take any action in respect of Ms Cadwell’s allegations, all but one of which have been found to have no element of substantiation, from what the children have specifically said in interview.

3. The exception is what X reported as having occurred to Y some time ago, most probably before the final orders of April 2019 were made.  Ms L considered that the detail and context provided by X were indicative of her reporting an incident which she remembered and which was sufficiently traumatic for it to remain in her mind long after it had occurred.

4. If it is true, it is deeply disturbing.  It is not appropriate that any parent should lose his/her composure with a child to such an extent that violence or force is utilised.  Parents who succumb to such behaviour are not appropriate role models for children.  However, there remains a lack of detail in respect of what happened and Mr Cadwell denies that it occurred.  It being his position that X is extrapolating some other innocent incident.

5. Ms L also considered that each of the parents, in the past, had exposed the children to inappropriate behaviour at handover.  In my view, the overt hostility, which each of the parents has displayed for the other, is a potent threat to the emotional well-being of the two children concerned.

6. This is particularly so given it is clear to me from Ms J’s evidence that the children have a close and significant relationship with each of their parents.  Accordingly, exposure to such conflict has the potential to cause conflicts of loyalties for the children and to be emotionally confusing for them.  This is a great threat to their emotional well-being and given both parents have contributed to this dynamic, some level of responsibility must be sheeted home to each of them.

7. In these circumstances, I am not of the view that the report of X raises a sufficient level of concern that the father’s relationship with the two children should be significantly curtailed for a prolonged period of time.  In my view, equally detrimental to the children would be the prospect of their relationship, with their father, becoming stunted or emotionally diminished by him not spending sufficient time with them to maintain this relationship.

8. I reach this conclusion on the basis that the incident in question predates the final order of April 2019; there is no objective evidence detailing any actual harm Y sustained; the father denies the incident; and none of the other allegations raised by the mother have been substantiated. 

9. In these circumstances, I conclude that the children being deprived of the significant benefits of having a meaningful level of relationship with their father is a detriment which outweighs the risk of a repetition of an incident of the kind described by X, which I acknowledge, if it occurred, must be regarded as serious.

10. The fundamental task for the court is to try and predict the likelihood of some similar detrimental incident occurring in future and put in place a response, which is commensurate with the risk so identified.  Part of this task, but not all of it, depends on the court trying to determine whether the incident did or did not occur, but ultimately, this is likely to be impossible.

11. I cannot rule out the possibility that Mr Cadwell will lose his cool with the children at some stage in the future.  I must also try to ascertain the severity of any such incident.  Essentially, if he does lose his composure, how severe will that event be for the children?  What are the risks implicit in this?  In this context, it is noteworthy that the incident appears to pre-date the final consent orders.

12. In these circumstances, I am not persuaded that the level of risk requires prolonged supervision by the paternal grandmother as proposed by Ms Cadwell.  Neither Ms Cadwell nor Ms J considered this necessary a little over a year ago.  In April of 2019 and indeed since September of 2018, in the immediate aftermath of the parties’ difficult separation, she did not require the father’s time to be supervised or indeed restricted to daytime alone.

13. In my view, the difficult circumstances arising when the parties finally separated still act as an accelerant to their acrimonious parenting relationship.  The father is bitter that the children live so far away from him and their former family home and this arose as a consequence of the mother’s unilateral decision.  More significantly, he remains resentful that the distance precludes him from being as fully involved as he would like to be in the daily lives of X and Y.

14. The orders of April 2019 are difficult to implement in practical terms.  Each parent is required to travel a significant distance.  This is expensive and leads to simmering resentment, which in turn affects the attitudes of others aligned with each of the parents concerned.  Neither party seems to have any great aptitude for concealing these resentments from the other at handover.

15. In the absence of one party moving closer to the other – which appears unlikely – I can do nothing about the practical difficulties implicit in the distance between the parties’ two homes other than to point out the obvious – the origin of these problems has nothing to do with X or Y, although they have to live with the emotional consequences of them.

16. The greatest protective factor for the children is likely to be the possibility of the parents themselves attempting to denature the hostility between them and act in a more positive way towards the other.  This, after all, would appear to be the rationale for the parenting courses recommended by Ms L.

17. In my assessment, any reduction of the father’s time or the imposition of conditions of supervision, are likely to make him more, rather than less, resentfully disposed towards the mother and so exacerbate rather than diminish the conflict between them and so be counter-productive.

18. Concerns arising from family violence and the children’s possible exposure to it loom large in this case.  Family violence is defined by section 4AB(1) of the Family Law Act.  It means:

    “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

19. In some ways, it seems to me, each of the parties has attempted to coerce and control the other in respect of issues to do with the children.  Each of them has exposed the children to their essentially negative view of the other parent and it seems to be the case that X, in particular, has been struggling.

20. It is also, to my mind, a very significant factor that the parties were able to resolve the parenting issues between them a relatively short period of time ago.  Perhaps neither of them was fully satisfied with this outcome.  However, it came about following an extensive investigation of the dynamic of their family undertaken by Ms J, who made her recommendation being fully aware of the deficits in the parties’ relationship.

21. The events which have occurred since Ms J’s report indicate that nothing has changed in the dynamic of the parties’ dysfunctional parenting relationship.  The question arising for the court being, in these circumstances, has there been a sufficient change to justify altering those final orders.

22. I do not consider that there has been such a change.  Finality is generally preferable in children’s cases.  Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned.  As I have already observed, I can do little about the major bone of contention between the parties concerned in this case – the distance between Town C and Town M.

23. The issues relating to this controversy were settled by the April 2019 consent order, which I suspect left each party feeling dissatisfied.  Generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements.  Litigation is not helpful to children. 

24. It is desirable that arrangements for the care of children be stable and so final.  For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[7]  In this context, it has been said that the court should not condone a “perennial football match between parents, who … seek to canvass again and again the question of custody of a child …”[8]

    [7]  See CDJ v VAJ (1998) FLC 92-828 at 85,449

    [8]  See In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 approved in SPS & PLS [2008] FamCAFC 16 per Warnick J at [57]

25. In my view, a proportionate response to the issues of risk raised in this case was for two extended supervised re-introductory visits as envisaged in the order of 14 May 2020.  In all these circumstances, in my assessment, it would be in X and Y’s best interests for the orders of 1 April 2019 to resume as previously intended from 5 June 2020 onwards with the normal weekend visit to occur from 5.30 pm on that Friday until 5.30 pm the following Sunday.  I note that the orders do not make any allowance for extension in the event of a public holiday.

26. The only alteration to the 1 April 2019 orders which I propose to make is to issue an injunction preventing the father attending handover, at the Suburb A police station, with Ms B.  The aim of this being to mitigate the unacceptable level of tension between the two aspects of the children’s family.

27. I do not propose to appoint an independent children’s lawyer or order yet another expert investigation into the family at this stage.  In my view, these interventions raise the risk of systems abuse for X and Y. Perhaps naively I am hoping that matters will settle down over a reasonably lengthy adjournment of approximately four months and the case can be revisited at this stage.

28. As a consequence, of these findings, the competing interim applications can be dismissed.  For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty seven (137) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 3 June 2020